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SC to hear pleas against polygamy, nikah halala after Dussehra

Source: PTI
August 30, 2022 22:49 IST
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The Supreme Court on Tuesday sought the response of the National Human Rights Commission (NHRC), National Commission for Women (NCW) and the National Commission for Minorities (NCM) to pleas challenging the constitutional validity of polygamy and 'nikah halala' among Muslims.

A five-judge constitution bench headed by Justice Indira Banerjee impleaded NHRC, NCW and NCM in the matter and issued notices to them.

The bench, also comprising Justices Hemant Gupta, Surya Kant, M M Sundresh and Sudhanshu Dhulia took note of the submission of senior advocate Shyam Divan for petitioner Ashwini Kumar Upadhyay, who sought their impleadment.

The case will be heard after the Dussehra holidays.


Upadhyay has sought a direction to declare polygamy and 'nikah halala' among Muslims as unconstitutional and illegal.

The apex court had in July 2018 considered the plea and referred the matter to a Constitution bench already tasked with hearing a batch of similar petitions.

The apex court had issued notice to the Centre on the petition filed by a woman named Farjana and tagged Upadhyay's plea with a batch of petitions to be heard by the Cconstitution bench.

The petition by the lawyer sought a declaration that extra-judicial talaq is cruelty under Section 498A of the IPC, nikah halala is an offence under Section 375 of the IPC, and polygamy a crime under Section 494 of the IPC, 1860.

The apex court, which on August 22, 2017, banned the age-old practice of instant 'triple talaq' among Sunni Muslims, had on March 26, 2018, decided to refer to a larger bench a batch of pleas challenging the constitutional validity of polygamy and 'nikah halala'.

While polygamy allows a Muslim man to have four wives, 'nikah halala' is a process under which a divorced Muslim woman has to first marry another person, consummate it and get a divorce from the second husband, if the couple were to remarry after a compromise.

The pleas were referred to a larger bench by the Supreme Court after an earlier five-judge Constitution bench in its 2017 verdict kept open the issue of polygamy and 'nikah halala' while quashing the practice of 'triple talaq'.

It had also issued notices to the law and justice ministry, the minority affairs ministry and the National Commission of Women (NCW) at that time.

Some petitions have also challenged the practices of 'Nikah Mutah' and 'Nikah Misyar' -- two types of temporary marriages where duration of the relationship is specified and agreed upon in advance.

In one of the petitions, a woman named Sameena Begum has said by virtue of the Muslim Personal Law, Section 494 of the Indian Penal Code (punishment for marrying again during lifetime of husband or wife) was rendered inapplicable to Muslims and no married woman from the community has the avenue of filing a complaint against her husband for the offence of bigamy.

Another plea was filed by Rani alias Shabnam who alleged that she and her three minor children were thrown out of the matrimonial home after her husband remarried. She has sought  the practices of polygamy and 'nikah halala' to be declared unconstitutional.

A similar plea was filed by Delhi-based Nafisa Khan seeking almost the same reliefs.

She has sought declaring the Dissolution of Muslim Marriages Act, 1939, as unconstitutional and violative of Articles 14, 15, 21 and 25 (freedom of conscience and free profession, practice and propagation of religion) of the Constitution in so far as it fails to secure for Indian Muslim women the protection from bigamy which has been statutorily secured for women in India belonging to other religions.

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